State of
Orissa Vs. State of Andhra Pradesh [2010] INSC 355 (5 May 2010)

Judgment

IN THE
SUPREME COURT OF INDIA ORIGINAL JURISDICTION ORIGINAL SUIT No. 11 of 1968 STATE
OF ORISSA ... PLAINTIFF VERSUS STATE OF ANDHRA PRADESH ... DEFENDANT

K. G.
BALAKRISHNAN, CJI

1. This
is a suit filed under Article 131 of the Constitution of India by the State of
Orissa (plaintiff) against the State of Andhra Pradesh (defendant) for a
declaration that the Borra Group of villages, also referred to as `Borra
Mutha', form part of the State of Orissa. Admittedly, the group of villages is
located within the geographical limits of the State of Andhra Pradesh.

2. The
State of Orissa in its plaint has averred that Borra Mutha [hereinafter
`disputed area') formed part of the Jeypore (Impartible) Estate at the time of
the creation of the province of Orissa in 1936 by way of Government of India
(Constitution of Orissa) Order, 1936 [hereinafter `Orissa Order'] and that the
said Estate subsequently became part of the modern-day State of Orissa after
the abolition of the Zamindari system. The plaintiff has submitted that the
Province of Orissa, at the time of its creation, had included the disputed area
as contemplated in the First Schedule, Part I, clause 2 (iv) read with Section
3 (1) of the Orissa Order. Albeit, the disputed area is not territorially
contiguous with the State of Orissa, yet the plaintiff state claims that it had
remained within its administrative jurisdiction when the Province of Orissa was
created and later on when the Constitution was enforced. It was also averred in
the plaint that the former province of Madras had admitted that the disputed
area fell within the administrative jurisdiction of the State of Orissa. The
plaintiff has also alleged that since the creation of the State of Andhra (in
1953) and later on after the creation of the State of Andhra Pradesh in 1956,
the defendant state has 2 enforced its own administration over the disputed
area. The plaint then narrates as to how the defendant's combative approach had
compelled the State of Orissa to write a letter (No. 16715, Ref. dated
7-7-1962) to the Central Government so that the latter could persuade the State
of Andhra Pradesh to vacate the disputed area. The State of Andhra Pradesh in its
reply to the Central Government vide its letter (No. 2504- J/62.8) dated
30-3-1963, expressed its inability to vacate the disputed area by urging that
the disputed area legitimately belonged to the State of Andhra Pradesh as per
the order of the Andhra Pradesh High Court in Writ Petition No. 539/1957.
Accordingly, the Central Government intimated the State of Orissa that it was
not in a position to intervene in the matter relating to the disputed area,
vide its letter [No. 38 /4/ 62-SR (R)] dated 24-1- 1964. According to the
plaintiff state, its territorial integrity has been violated by the defendant
state which has committed acts of trespass on account of its refusal to vacate
the disputed area, thereby impelling the plaintiff to approach this Court under
Article 131 of the Constitution. The plaintiff has averred that 3 the cause of
action arose after the formation of the State of Andhra (under Andhra State
Act, 1953).

3. As
stated earlier, the State of Orissa has filed the present suit under Article 131
of the Constitution seeking relief in the form of a declaration that the State
of Andhra Pradesh has committed trespass on its land by interfering in the
administration of some of its villages. The plaintiff's prayer is reproduced
below:

"(i)
A declaration that the area as shown in Annexure "B" including
therein the main village Borra with 12 hamlets (Borra Mutha) is a part of the
plaintiff's territory and the plaintiff has the right to possess and administer
the disputed area in exclusion of the defendant.

ii) A
declaration that the defendant is liable to vacate the disputed area.

iii) A
decree for eviction of the defendant from all and/or any part of the disputed
area as are under illegal possession and administrative control of the
defendant and further directing the defendant to vacate the disputed area and
return the area to the uninterrupted possession, control and administration of
the plaintiff.

iv)The
cost of the suit and such further relief which may seem just and proper to this
Hon'ble Court and to which 4 the plaintiff may be found entitled in the
circumstances of the case and in the interest of justice."

4. The
defendant (State of Andhra Pradesh) in its written statement has taken the
preliminary objection that the prayer sought by the plaintiff does not fall
within the scope of the original jurisdiction of this Court as contemplated in
Article 131, since that provision limits the jurisdiction by expressly stating
that the latter is `subject to the other provisions of the Constitution'. In this
regard, attention has been drawn to Article 1(2) of the Constitution which
provides that the territories of States shall be as specified in the First
Schedule to the Constitution. In view of this provision, it has been urged that
the territories comprising the State of Orissa have already been specified in
Entry No. 10 of the First Schedule to the Constitution and therefore this suit
is not maintainable. The defendant has taken the stand that the province of
Orissa was constituted under the Orissa Order, issued on 3-03-1936 by His
Majesty in exercise of the powers conferred by Section 289 (ii) of the
Government of India Act, 1935. Section 3(2) of the Orissa Order had provided
that if a boundary dispute arose in respect 5 of the specified territories, then
the decision of the Governor General would be final. Therefore, it was
contended that since the plaintiff state had not claimed administrative
jurisdiction over the disputed area and neither did it assert its claim before
the Governor General, no relatable question can be raised after the enforcement
of Article 1(2) of the Constitution. Furthermore, it was reasoned that the
territories of all the States had been specified in the First Schedule to the
Constitution, which made it amply clear that the disputed area fell in the
erstwhile Province of Madras, the relevant district of which is now an integral
part of the State of Andhra Pradesh. In response to the plaint, it has been
reasoned that even if this Court's original jurisdiction under Article 131 were
to be assumed, reference must be made to Section 3(2) of the Orissa Order which
controls the operation of Section 3(1) of the same which defines and delimits
the area to be included in the Province. As a natural corollary to this, if a
particular area is outside the external land boundary as described in Part I of
the First Schedule to the Orissa Order, it cannot form part of the State of
Orissa. It has been contended that the reference to Jeypore 6 (Impartible)
Estate must be construed in view of the fact that the original Zamindari had
been included in the Schedule to the Madras Impartible Estate Act II of 1904.
The holder of the Estate made subsequent acquisitions which were geographically
situated outside the original Zamindari and the holders might not have intended
the inclusion of those acquisitions in the original Zamindari. It has also been
averred by the defendant that it firmly believes that the disputed area was a
subsequent acquisition which was surrounded by another Zamindari and it formed
a separate enclave. The defendant has further submitted that its administration
of the disputed area has always been lawful and that the plaintiff had never
exercised administrative jurisdiction over the disputed area, even before the
formation of the State of Andhra in 1953.

5. Based
on the pleadings of the parties, the following issues have been framed for
adjudication:

7
Preliminary Issues 1) Whether the suit is maintainable under Article 131? 2)
Whether the suit is maintainable in view of Section 3 (2) and (3) of the
Government of India (Constitution of Orissa) Order, 1936? 3) Whether the suit
is maintainable in the absence of notice under Section 80 CPC? 4) Whether the
suit is within limitation prescribed by law? On Merits 5) Whether the Disputed
Area was within the territories of the Plaintiff state as constituted under the
Constitution of India? 6) Did the Disputed Area form a part of the Province of
Orissa as constituted by the Government of India (Constitution of Orissa)
Order, 1936? 8 7) Did the disputed area form a part of the Jeypore (Impartible)
Estate originally and subsequently and does it form part of the province of
Orissa? 8) Did the former Province of Madras and subsequently the State of
Madras admit that the disputed area formed part of the plaintiff state? 9)
Whether the disputed area remained under the administration of the Province of
Orissa when the said Province was formed and thereafter the State of Orissa?
10) In view of the letter dated 7.7.1962 by the Government of Orissa addressed to
the Government of India (Annexure "D" to the Plaint), can the
Plaintiff lay any claim at all to the said area after 1950? 11) Whether the
expression the Jeypore (Impartible) Estate means the Estate as included in the
Schedule to Madras Impartible Estate since the latter includes subsequent
acquisitions of various properties situated outside the original Estate and in
different Districts and Provinces? 12) Whether the defendant or its predecessor
State or Province has always exercised administrative control over 9 the
disputed area and whether the said area was at all material times treated as if
it formed part of the defendant's State? 13) Whether in any event the Defendant
has acquired the right to administer the area by adverse possession? 14)Whether
the suit is barred either because of waiver or acquiescence on the part of the
plaintiff as it did not raise any such dispute under Section 3(3) of the Order
under which the Province of Orissa was constituted? 15) Whether the plaintiff
is entitled to any relief and if so to what relief? Re: Issue I

6. As
noted earlier, the State of Orissa was constituted under the Orissa Order,
which came into effect on 1.4.1936. The Borra Group of Villages (i.e. Borra and
twelve hamlets) admittedly are not territorially contiguous with the main land
of Orissa. The interstate boundary is 11 kilometers away (aerial distance) from
Borra and its surrounding villages. This 10 group of villages is situated
within the geographical limits of the State of Andhra Pradesh which earlier formed
part of Jeypore (Impartible) Estate, a Zamindari, before the creation of State
of Orissa. Part II of the Orissa Order provided the following:

PART II
Definition of Orissa and Date of Separation

3. (1)
The Province of Orissa (hereafter in this Order referred to as
"Orissa") shall consist of the areas specified in Part I of the First
Schedule to this Order, and accordingly as from the date of the coming into
operation of the provisions of sub section (1) of section two hundred and
eighty-nine of the Act relating to the formation of the Province of Bihar and
Orissa, those areas shall cease to form part of the Province of Bihar and
Orissa, the Presidency of Madras and the Central Provinces respectively.

3. (2)
The external land boundaries of Orissa shall be as described in Part II of the
said schedule.

3. (3) If
any question arises with respect to the boundaries as existing at the date of
this Order, of any district, Agency, taluk, village, estate, forest or other
area referred to in the said Schedule or otherwise with respect to the
delimitation of the boundary of Orissa, that question shall be referred to the
Governor- General, whose decision thereon shall be final.

_________
The first schedule to the Orissa Order described the areas which would constitute
the Province of Orissa. The relevant provisions are reproduced below:

11 First
Schedule Part - I Areas comprised in the province of Orissa

1. That
portion of the Province of Bihar and Orissa which is at the date of this Order
known as Orissa division thereof.

2. Areas
transferred from the presidency of Madras:- (i) The Ganjam Agency Tracts;

(ii) the
following areas in the non- Agency portion of the Ganjam district viz., the
taluks of Ghumsur, Aska, Surda, Kodala and Chatrapur and so much of the taluks
of Ichapur and Berhampur as lies to the north and west of the line described in
part II of this schedule;

(iii) So
much of the Parlakimedi Estate as lies to the north and east of the said line;
and (iv) The following areas in the Vizagapatam district, that is to say, the
Jeypore (Impartible) Estate and so much of the Pottangi Taluk as is not included
in that estate.

After the
enforcement of the Constitution of India, the territorial extent of the State
of Orissa was specified in Entry No. 10 of the First Schedule to the
Constitution. The State of Orissa has prayed for a declaration that the main
village Borra along with 12 hamlets (Borra Mutha) is a part and parcel of the
plaintiff's territory and that the plaintiff has the right to possess and
administer the disputed area to the exclusion of the defendant.

7. The
defendant, in light of Article 131 and the proviso to the same Article has
contended that this Court lacks jurisdiction and the suit is liable to be
dismissed on the ground of lack of jurisdiction. Article 131 provides the
following:

"131.
Original Jurisdiction of the Supreme Court.

- Subject
to the provisions of this Constitution, the Supreme Court shall, to the
exclusion of any other court, have original jurisdiction in any dispute- (a)
...

(b) ...

(c)
between two or more States, If and in so far the dispute involves any question
(whether of law or fact) on which the existence or extent of a legal right
depends:

Provided
that the said jurisdiction shall not extend to a dispute arising out of any
treaty, agreement, covenant, engagement, sanad or other similar instrument
which, having been entered into or executed before the commencement of the
Constitution, continues in operation after such commencement, or which provides
that the said jurisdiction shall not extend to such a dispute."

(emphasis
supplied)

8. The
defendant's objection to the maintainability of the suit under Article 131 is
on two grounds. The first objection is that the exercise of original
jurisdiction under Article 131 is subject to the other provisions of
Constitution, and therefore this Court is barred from adjudicating delicate
issues relating to 13 state boundaries since Article 1(2) read with Entry 10 of
the First Schedule to the Constitution conclusively addresses this aspect. The
second strand of the objection is that as per Article 3 of the Constitution, only
the Union Parliament is competent to increase, diminish or alter the boundaries
of any State in the manner provided. In response to this reasoning, the
plaintiff has pointed to the contents of the prayer to assert that there is no
intention to seek an alteration of boundaries but instead, the prayer simply
seeks a declaration from this Court that the disputed area comes within the
plaintiff State as contemplated in Entry 10 of Schedule I to the Constitution
and that the plaintiff has the right to possess and administer the disputed
area to the exclusion of the defendant. The plaintiff has also prayed for a
declaration that the defendant is liable to vacate the disputed area. Since
plaintiff has not sought any increase, alteration or diminishing of any area
but only a declaration that the disputed area comes under the administrative
jurisdiction of the plaintiff state, we are inclined to agree with the view
that Article 131 itself does not put fetters on this Court to decide this
original suit and there 14 would be no encroachment on the constitutionally
sanctioned power of the Parliament to alter state boundaries.

9. In
order to decide whether this suit is barred under the proviso to Article 131,
we will have to ascertain the basis of the plaintiff's claim and the documents
which have been produced in support of the contentions. The plaintiff state, in
order to fortify its claim, has relied on a letter exchanged between the
Secretary to the Government of Madras and the Chief Secretary of the Government
of Orissa (Letter No. 829) dated 02.06.1936 (Referred to in Para 5 of the
Plaint, Exhibit 60). The letter was written to communicate to the Government of
Orissa that the Araku police station and the villages mentioned in List A
(prepared by Government of erstwhile Presidency of Madras) would from that
point of time come under the jurisdiction of the Chintapalli circle of the
Vizagapatam district in the erstwhile Madras Presidency. In distinction from
this, the letter further stated that the villages enumerated in List B
(prepared by Government of Madras) would fall under the jurisdiction of the
Government of Orissa and accordingly under any police station 15 which the
Orissa government deemed fit. In respect of the correspondence by way of this
letter, the operative question for us is whether the said letter comes within
the expression `other similar instrument' which appears in the Proviso to
Article 131 of the Constitution. If the correspondence does indeed come within
the said expression, this Court cannot decide the present suit on merits. For
guidance on how to interpret this expression, we can refer to the observations
of this Court in Sree Mohan Chowdhury v. The Chief Commissioner, Union
Territory of Tripura, [1964] 3 SCR 442, (B.P. Sinha, C.J., at p. 454):

"Is
the President's Order in question an "instrument"

within
the meaning of the section? The General Clauses Act does not define the
expression "instrument". Therefore, the expression must be taken to
have been used in the sense in which it is generally understood in legal
parlance.

In
Stroud's Judicial Dictionary of Words and Phrases (Third Edition, Volume 2,
page 1472), "instrument" is described as follows:

16 The
expression is also used to signify a deed interpartes or a charter or a record
or other writing of a formal nature.

But in
the context of the General Clauses Act, it has to be understood as including
reference to a formal legal writing like an Order made under a statute or
subordinate legislation or any document of a formal character made under
constitutional or statutory authority..."

"a
writing as the means of giving formal expression to some act, contract,
process, or proceeding as a deed, contract, writ etc. `A writing given as the
means of creating, securing modifying, or terminating a right or affording
evidence; a deed of conveyance, a grant, a patent, an indenture etc. A formal
legal writing e.g. a record deed or written instrument. `Anything reduced to
writing;

written
instrument, or instrument of writing; more particularly, a document of formal
or solemn character.' Instrument is a word most frequently used to denote
something reduced to writing, as a means of evidence, and writing as the means
of giving formal expression to some act; a writing expressive of some act,
contract, process or proceeding; a writing containing any contract or
order."

10. In
respect of the letter exchanged between the Secretary to the Government of
Madras and the Chief Secretary to the Government of Orissa, it must be noted
that the letter simply listed the names of the villages which would fall under
the jurisdiction of the Araku police station (which after the creation of the
Province of Orissa, remained under the 17 Chintalapalli circle of Vizagapatam
district in the erstwhile Madras Presidency), and those which would fall under
the jurisdiction of the then Government of Orissa. After scrutinizing the contents
of this letter, we find that it cannot be described as an `other similar
instrument' in the legal sense. The letter merely communicated the intentions
of the Madras Government at that point of time and it was not issued under the
authority of a legislation or subordinate legislation. Neither can it be
described as `a document of a formal character which was made under
constitutional or statutory authority'. In the light of this finding, we hold
that the original jurisdiction of this Court is not barred with reference to
the proviso of Article 131 of the Constitution. We, therefore, hold this issue
of maintainability to be in favour of the plaintiff.

Re: Issue
2

11. With
respect to this issue, the defendant has averred in the written statement that
under the Orissa Order, the 18 Governor General was contemplated as the final
authority to decide any question with respect to an agency, taluk, village,
estate, forest or any area in relation to the delimitation of the boundary of
the Province Orissa. In view of the same, it was asserted that this Court will
not have jurisdiction to entertain the present suit. On the contrary, the
plaintiff avers that after the formation of the Province of Orissa in 1936, it
was the Government of Orissa which had exercised jurisdiction over the disputed
area since there was no dispute with the erstwhile Madras Presidency. It was
further stated that after the abolition of the Jeypore (Impartible) Estate
under the Orissa Estates Abolition Act, 1952, it was the Government of Orissa which
collected land revenue from these villages. In fact, the plaintiff State has
averred that when the Constitution was enforced in 1950, it had control over
the disputed area but the situation changed after the formation of the State of
Andhra in 1953 which subsequently became part of the State of Andhra Pradesh in
1956. From the viewpoint of the plaintiff State, the defendant state then began
transgressing into its legal rights by interfering in the disputed area.

12. The
dispute between both the states germinated in 1957, which was well after
independence and at that time the position of the Governor General had become
obsolete and the Union Parliament was the supreme law making body in the
country. The exclusion of judicial scrutiny in the Orissa Order which was
notified in the pre-independence period cannot be mechanically carried forward
to the post-independence period.

Therefore,
it is futile to invoke the authority of the Governor General as contemplated
under the Orissa Order. Accordingly, Issue 2 will have to be answered in favour
of the plaintiff.

Re:
Issues 3 & 4

13. These
issues can be addressed together since they both pertain to procedural
considerations vis-a-vis the maintainability of this original suit before this
Court. The defendant has averred that the suit is liable to be dismissed on two
procedural grounds, firstly, that no notice was served upon the defendant by
the plaintiff as required under section 20 80 of the Code of Civil Procedure,
1908 [hereinafter `CPC'] and secondly, that the period of limitation prescribed
for obtaining the nature of relief sought by the plaintiff is only three years
from the date of accrual of the right, as per Article 58 of the Limitation Act, 1963. The right, if any, accrued to the plaintiff on
01-04-1936, i.e., when the Province of Orissa was constituted. In interpreting
the scope of Article 131 of the Constitution in State of Rajasthan v. Union of
India (1977) 3 SCC 592, Chandrachud, J. [As his Lordship then was] held that
the requirement for entertaining a suit under Article 131 is that the suit must
involve a question, whether of law or fact, on which the existence or extent of
a legal right depends. The purpose of Article 131 is to afford a forum for the
resolution of disputes which depend for their decision on the existence or
extent of a legal right. In State of Karnataka v. Union of India (1977) 4 SCC
608, Chandrachud, J. [as his Lordship then was] held:

"162.
The jurisdiction conferred on the Supreme Court by Article 131 of the
Constitution should not be tested on the anvil of banal rules which are applied
under the Code of Civil Procedure for determining whether a suit is
maintainable. Article 131 undoubtedly 21 confers `original jurisdiction' on the
Supreme Court and the commonest form of a legal proceeding which is tried by a
Court in the exercise of its original jurisdiction is a suit. But a
constitutional provision, which confers exclusive jurisdiction on this Court to
entertain disputes of a certain nature in the exercise of original jurisdiction
cannot be equated with a provision conferring a right on a Civil Court to
entertain a common suit so as to apply to an original proceeding under Article
131 the canons of a suit which is ordinarily triable under Section 15 of Code
of Civil Procedure by the court of the lowest grade competent to try it. Advisedly,
the Constitution does not describe the proceeding which may be brought under
Article 131 as a `suit' and significantly, Article 131 uses words and phrases
not commonly employed for determining the jurisdiction of a Court of first
instance to entertain and try a suit. It does not speak of a `cause of action',
an expression of known and definite legal import in the word of witness
actions.

Instead,
it employs the word `dispute', which is no part of the elliptical jargon of
law. But above all, Article 131 which in a manner of speaking is a
self-contained code on matters falling within its purview provides expressly
for the condition subject to which an action can lie under it. That condition
is expressed by the clause: "if and in so far as the dispute involves any
question (whether of law or fact) on which the existence of or extent of a
legal right depends." By the very terms of the article, therefore, the
sole condition which is required to be satisfied for invoking the original
jurisdiction of this Court is that the dispute between the parties referred to
in clauses (a) to (c) must involve a question on which the existence or extent
of a legal right depends."

22
Chandrachud J. further had categorically stated:

"163
...I consider that the Constitution has purposefully conferred on this Court a
jurisdiction which is untrammelled by considerations which fetter the
jurisdiction of a court of first instance, which entertains and tries suits of
a civil nature. The very nature of the dispute arising under Article 131 is
different, both in form and substance, from the nature of claims which require
adjudication in ordinary suits."

In
support of the same view, P.N. Bhagwati J. [as his Lordship then was] had
observed:

"165.
A proceeding under Article 131 stands in sharp contrast with an ordinary civil
suit. The competition in such a proceeding is between two or more governments-
either the one or the other possesses the constitutional power to act."

In the
light of the aforesaid observations, it is evident that the procedural
provisions which regulate the admissibility of civil suits before ordinary
civil courts do not apply in the strict sense when this Court exercises its
original jurisdiction to decide suits between States. Accordingly, Issue 3 and
4 will have to be answered in favour of the plaintiff.

23 Re:
Issues 6, 8, 9 & 10

14. These
four issues are taken together since they are interconnected and the fate of
the suit largely depends upon the answer to the aforesaid issues. The erstwhile
Zamindar of Jeypore was the holder of the Impartible estate of Jeypore as well
as the Impartible estates of Madugula and Pachipenta.

There is
no doubt that all of these estates fell within the territory of the erstwhile
Presidency of Madras till 01-04-1936.

However,
under Section 289(iii) of the Government of India Act, 1935, His Majesty the
King Emperor had passed the Orissa Order in 1936 which led to the carving out
of the province of Orissa. The Orissa Order had contemplated that the areas
constituting the Jeypore estate were to be transferred to the province of
Orissa. His Majesty's Council had at the same day (i.e. 3-03-1936) issued the
Government of India (Excluded and partially Excluded areas) Order 1936
[hereinafter `Order-in-Council'] acting under Section 91(1) of the Government
of India Act, 1935. Part II of the schedule to the latter Order included the
areas that were to be transferred 24 to Orissa from the Vizagapatam Agency in
the erstwhile Madras presidency. The effect of this order was the transfer of
Jeypore which included within its ambit the village of Borra, Gatevalsa etc. As
noted earlier, the Jeypore estate that was contemplated as part of the State of
Orissa was subsequently abolished in accordance with the Orissa Estate
Abolition Act, 1952.

15. The
plaintiff has submitted that the Order-in-Council had specifically included the
whole of the estate of Jeypore in the province of Orissa and that no part of it
was intended to be retained in the erstwhile Madras presidency. In support of
this contention, reliance has been placed on the words of Section 3 read with
Part I of the First Schedule to the Orissa Order. The relevant section
provides:- "(I) The province of Orissa (hereinafter in this Order referred
to as (Orissa) shall consist of the areas specified in Part I of the First
Schedule to this order, and accordingly as from the date of coming into
operation of the provisions of Sub-Section (1) of section two hundred and
eighty-nine of the Act relating to the formation of the province of Bihar and
Orissa, those areas shall case to form part of the province of Bihar and
Orissa, the 25 Presidency of Madras and the Central Provinces
respectively."

Now it
must be noted that Part I of the First Schedule to the Orissa Order defines the
area which constituted the province of Orissa. Clause 2 (iv) of this part
states that the following areas in the Vizagapatnam district, that is to say,
the Jeypore (Impartible) Estate and so much of the Pottangi taluk as is not
included in that estate, are comprised in the province of Orissa. On the basis
of the language extracted above, it was asserted that the whole of the Jeypore
(Impartible) Estate had been transferred to the then newly formed province of
Orissa and that no part of the same had been left in the territories that are
now part of the State of Andhra Pradesh. However, such an interpretation would
be overlooking Section 3(2) of the Orissa order as well as Part II of the First
Schedule to the same. Section 3(2) contemplates how to define the land
boundaries of Orissa. Those boundaries are described in part II of the First
schedule to the Orissa Order. As contemplated by Section 3(2) and part II of
the first schedule, a map was prepared by the Government of India as also by
the erstwhile 26 Presidency of Madras. Undoubtedly, a look at the map
establishes that the villages in dispute are not territorially contiguous with
the bounds of the State of Orissa. They are situated at some distance from the
inter-state boundary and it would be quite untenable to declare them as coming
within the plaintiff state's territory.

16.
However, the plaintiff has relied on two cases to argue that a departure can be
made from the norm of territorial continuity. Reference has been made to the
examples of the Sankara Tract, which is an enclave of the State of Madhya
Pradesh that is physically located within the State of Orissa as well as the
Union Territory of Pondicherry which includes a few enclaves that are located
at a considerable physical distance from each other. However, these two examples
relate to some specific historical considerations and these cannot be equated
with the dispute before us. The example of Sankara Tract is distinguishable
from the present case since this tract was earlier part of Sarangarh, an
erstwhile Princely State which acceded to the Union of India on 1-1-1948. The
27 absorption of the Sankara Tract in the State of Madhya Pradesh can hence be
traced back to an instrument of accession, which is a circumstance inviting
considerations that are entirely different from those before us in the present
suit. Furthermore, it must be noted that the Union Territory of Pondicherry
comprises of areas which were earlier governed by the French government and
under a special agreement with the French Government, Pondicherry was merged
with the Union of India. This Court therefore cannot examine the validity of
such an agreement in view of the proviso to Article 131, primarily because the
same was an outcome of political negotiations. The general rule is that the
extent of a province should be based on the principle of territorial
continuity.

17. The
plaintiff has denied the averment of the defendant on this point by asserting
that the Orissa Order did not exclude or preclude the inclusion of any
territory not having a contiguous land connection with the main territory. In
support of this contention, the plaintiff has relied on Letter No. 829, dated
02-06-1936 sent by the Secretary of the Government of 28 Madras to the Chief
Secretary of the Government of Orissa, which stated that the villages mentioned
in List B (Prepared by Government of Madras) would fall within the
administrative jurisdiction of the province of Orissa. However, the defendant
has strongly refuted this claim by submitting that the above- mentioned letter
was eclipsed and substituted by Government Order Modification [G.O.M.) No. 2751
issued by the Home (A) Department, Dated 17-10-1936, by which the State of
Madras had endorsed the contents of another Letter No. 2752, dated 14-10-1936
which declared that the Borra group of villages (shown as item 7 in List B in
Letter No. 829, dated 02-06- 1936) would remain in the State of Madras. The
defendant has strongly urged that in view of Letter No. 2753, dated 14-10-
1936, all the villages shown in List B (except Chatuva) had remained in the
State of Madras and subsequently became part of the State of Andhra in 1953 and
the successor State of Andhra Pradesh in 1956.

18. We
should give due importance to the fact that the plaintiff State had admitted in
Letter No. 1671, dated 07-07-1962, sent 29 by the Chief Secretary, Government
of Orissa to the Secretary, Ministry of Home Affairs, Government of India
(Exh.1) that the disputed area was outside the external land boundary of the
State of Orissa. The letter stated:

"...But
the external boundary of the Orissa province as defined in the First Schedule
of the order being inconsistent with the enumeration of the areas indicated in
Part- II, the resultant effect was that the "Borra Mutha" which was a
part of the Impartible estate of Jeypore, remained in Madras province (now in
Andhra Pradesh) and continues to be administered as part of it right up to
date..."

Furthermore,
while taking into account the operation of the Orissa Order of 1936, the letter
had stated:

"...this
Government feels that the mere fact that in the map of Orissa prepared in
pursuance of the above order, this area was not shown by mistake, cannot take
away the legal claim of this State, and therefore the Government of India are
requested to advice the Andhra Pradesh Government to restore the `Borra Muttah'
to Government of Orissa sine it forms a part of Orissa in accordance with the
Constitution of Orissa Order, 1936..."

As noted
earlier, the Government of India acted on this letter and wrote a letter to the
Government of Andhra Pradesh, vide Letter No. F. 38/4/62- SR-RI (dated
16-8-1962), to which the 30 Government of Andhra Pradesh sent a reply, vide
Letter No.

2504-J/62.8
(dated 30-03-1963), (Exh. 3) wherein it was stated:

"Ever
since 1936 this area has been under the continuous management and
administration successively of Madras, Andhra and Andhra Pradesh Govts. and the
Orissa Government has never in the past exercised any jurisdiction or control
over the area."

Exh. 3
also cited the order of the Andhra Pradesh High Court in W.P. No. 539/1957,
wherein it had been declared that a map was prepared at the time of the
promulgation of the Orissa Order, which clearly indicated that the disputed
area fell within the territory of the erstwhile Madras Presidency.

Subsequently,
the Government of India, vide its Letter No. 38/4/62-SR(R), [Exh. 2] sent a
reply to the Government of Orissa after taking into account the contents of the
letter sent by the Government of Andhra Pradesh, the relevant extracts of which
are as follows:

"The
letter shows that the area claimed by the Orissa Government being well within
the adjoining state could not have been intended to form part of Orissa and
that the intention is borne out by the description of external land boundaries
of Orissa in part II of the First 31 Schedule read with para 3 (2) of the
Government of India (Constitution of Orissa) Order, 1936. In view of this, the
Government of India regret their inability to advise the Andhra Pradesh
Government to transfer the Borra Muttah area to Orissa."

After
examining Section 3 of the Orissa Order along with the First Schedule to the
same and perusing the correspondence exchanged between Government of Orissa,
Government of India and Government of Andhra Pradesh, we find the contentious
issues to be in favour of the defendant.

Re: Issue
5

19. In
view of what has been stated by us while answering Issues 6, 8, 9 and 10, this
issue does not need any further consideration and this issue is accordingly
answered in favour of the defendant.

Re:
Issues 7, 11 and 12

20. These
issues have to be answered on the basis of the assertions made in the plaint,
written statement as well as the rejoinder to the written statement. The
defendant has averred 32 that the reference to the Jeypore (Impartible) Estate
as mentioned in the First Schedule to the Orissa Order should be construed as
one to the ancient Zamindari which had been included in the Schedule to the
Madras Impartible Estate Act II of 1904. The defendant has submitted that the
holders of the Jeypore (Impartible) Estate had made subsequent acquisitions of
various properties including land and buildings whose locations were at some
distance from the original Zamindari. Some of these subsequent acquisitions
were in different districts and provinces and therefore it cannot be said with
certainty that the holder intended to integrate such acquisitions with the
original Zamindari. According to the defendant, there is reasonable cause to
believe that the disputed area was one such subsequent acquisition. The disputed
area had earlier formed an enclave which was surrounded by another Zamindari.
Proceeding with this reasoning, the defendant has submitted that the Order-in-
Council had only intended that the original Zamindari of Jeypore (Impartible)
Estate would fall under the administrative control of the State of Orissa. The
intent of the Order-in- 33 Council, as maintained by the defendant at that
time, was accepted by both the governments, i.e. State of Orissa as well as the
erstwhile Presidency of Madras. The defendant has further made the case that
the plaintiff had never exercised any type of jurisdiction over the disputed
area and that the available records demonstrate that the disputed area had been
part of a taluk which was in turn a part of the erstwhile Madras Presidency and
therefore, at the time of the enforcement of the Constitution, the disputed
area did not fall within the territories of the State of Orissa as contemplated
in Entry 10 of Schedule I to the Constitution. Hence, it was urged that when the
State of Andhra was formed in 1953, the disputed area became part of the same.

21. On
the other hand, the plaintiff in rejoinder has contended that the disputed area
formed part of the Jeypore (Impartible) Estate as contemplated in the Schedule
to the Madras Impartible Estate Act (II of 1904). The plaintiff has denied that
the disputed area was a subsequent acquisition by the holder of the said
Estate. The plaintiff has also asserted that it had 34 never considered the
disputed area to be under the jurisdiction of the Madras Presidency. In support
of this contention, it was submitted that the disputed area had remained under
the revenue jurisdiction of the Jeypore (Impartible) Estate till the abolition
of the Estate by way of a State legislation in 1952. The plaintiff has also
relied on a report compiled by the East India Company in 1784 in which it was
noted that the disputed area came within the Zamindari and that the Zamindar of
Jeypore used to collect annual revenue of 25 rupees from the disputed area. It
was further stated that in 1893, the Maharaja of Jeypore had gifted the Borra
village to the Pujari of Borra. The plaintiff has thus argued that the claims
of the defendant are contrary to the documents which are in its possession and
knowledge.

22. It is
of course the refusal of the defendant to concede the disputed area to the
plaintiff which gave rise to the cause of action in the present suit. The
plaintiff seeks administrative control over the disputed area since it alleges
that the defendant has committed trespass by interfering with the 35
administration of the disputed area after 1953 and more particularly after
1957. The fact that the disputed area was part of the Jeypore (Impartible)
Estate before the notification of the Orissa Order has not been contested by
the defendant.

However,
the plaintiff has failed to establish that it had governed the disputed area
prior to the constitution of the State of Andhra in 1953, especially in light
of the fact that the disputed area is located at a considerable distance from
the inter-state boundary. The documents relied upon by the plaintiff do not
convince us that the plaintiff had exercised administrative jurisdiction over
the disputed area, since the same is surrounded by villages that have
undeniably been under the administrative control of the State of Andhra
Pradesh. In fact, the plaintiff has admitted that till the abolition of the
Jeypore Estate, it was not the State of Orissa but the Zamindari which had
collected land revenue from the disputed area. A plain reading of Part I and II
of the Orissa Order along with the First Schedule to the same, leads us to
conclude that the Order-in-Council did not intend to include the disputed area
within the administrative control of the 36 State of Orissa. The three issues
are answered accordingly.

Re:
Issues 13 and 14

23. The
aforesaid issues need not be answered in detail since we have already resolved
that the proceedings in an original suit under Article 131 of the Constitution
are entirely distinguishable from ordinary civil suits. An observation of Y.V.
Chandrachud J., [As His Lordship then was] in State of Karnataka v. Union of
India (1977) 4 SCC 608, may amply clarify the position:

"165.
In a civil suit the plaintiff has to succeed on the strength of his own title,
not on the weakness of his adversary because the defendant may be a rank
trespasser and yet he can lawfully hold on to his possession against the whole
world except the true owner. If the plaintiff is not the true owner, his suit
must fail. A proceeding under Article 131 stands in sharp contrast with an
ordinary civil suit. The competition in such a proceeding is between two or
more governments - either the one or the other possesses the constitutional
power to act."

The
issues are answered accordingly.

Re: Issue
15 37

24. After
examining the averments and contentions advanced on behalf of both the parties,
we do not deem it fit to grant the declaration sought by the plaintiff.
Consequently the prayer of the plaintiff is unsustainable and liable to be
dismissed without any other relief.

25. The
plaintiff has failed to establish before us that it had exercised
administrative control over the disputed area after the creation of Orissa in
1936. The defendant has produced documents before us which entail that it is
the State of Andhra Pradesh and its predecessor states which have been
exercising the administrative jurisdiction over the disputed area. The
defendant has also demonstrated that all the villages that are part of the
Borra Group, lie within the Ananthagiri Mandal of the present-day
Vishakhapatnam District (Exhibits.

E; K/1;
Q; R). The villages which comprise the disputed area are listed below:

1. Borra-
Getuvalasa

2.
Ninimamidi 38

3.
Pedduru

4.
Pooluguda

5.
Bitrabeda

6.
Dekkapuram

7.
Kuntiyasimidi

8.
Eguvamamidi valsa

9.
Koyitiguda

10.
Liddangi

11.
Jeerugedda

12.
Bisiaguda

13.
Bodilibodi

26. The
Orissa Order of 1936 did not intend to allocate the disputed area to the State
of Orissa, even though it had been acquired by the Zamindar of the Jeypore
(Impartible) Estate at a certain stage. After the formation of the province of
Orissa, the disputed area was part of the Vizagapatam District of the erstwhile
Madras Presidency and despite the contrary claims of the plaintiff, the
disputed area was notified as part of the Srungavarapukota assembly
constituency in the State of 39 Andhra Pradesh. It is also pertinent to note
that the plaintiff could not establish that the inhabitants of the disputed
area recognize Oriya as their first language.

27.
Therefore, in the light of these findings and considerations, we reject the
prayer of plaintiff and the suit is dismissed accordingly. There will be no
order as to costs.